DN AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 144
P1090/16
OPINION OF LADY CARMICHAEL
In the Petition of
DN
Petitioner
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
for Judicial Review
Pursuer: Irvine; Drummond Miller LLP
Defender: Webster; Office of the Advocate General
24 November 2017
Background
[1] The petitioner is a national of Uganda. She is 19 years of age. Her mother, Mrs N, left Uganda and entered the United Kingdom at some point in 2007 with the petitioner’s younger brother, S, whose date of birth is 6 May 2006. The petitioner remained in Uganda, and the two remained in telephone contact. On 18 June 2012 Mrs N was given discretionary leave to remain in the United Kingdom (“DL”), and that grant has been renewed subsequently.
[2] DL is a form of leave introduced alongside humanitarian protection in April 2003 to replace exceptional leave to remain. It was used initially to grant leave for Article 8 reasons, that is, where removal would breach the United Kingdom’s obligations under Article 8 ECHR. In July 2012, after the grant of DL to Mrs N, the position changed. Following the implementation of the family and private life rules on 9 July 2012, the respondent no longer grants DL where the requirements of those rules in Appendix FM or paragraphs 276ADE(1) to 276CE of the Immigration Rules (“the rules”) are met, or where leave outside the rules should be granted for Article 8 reasons: Asylum Policy Instruction: Discretionary Leave, (v 7.0, 18 August 2017), paragraph 1.2 (6/10). It follows that some grants of DL made before 9 July 2012 are grants of leave which would on or after that date fall to be grants of leave within the rules. DL continues to exist as a form of leave to be granted in exceptional and compassionate circumstances.
[3] On 1 August 2014 the petitioner submitted an application for entry clearance to join her mother and brother in the United Kingdom. That application was unsuccessful, as was the petitioner’s appeal to the First-tier Tribunal (“FTT”). The FTT refused the petitioner’s application for leave to appeal to the Upper Tribunal (“UT”). The petitioner then applied to the UT for permission to appeal, and it too refused her application. She now seeks judicial review of that refusal of permission.
[4] The petition raises issues about the construction of paragraph 301 of the rules, which is, so far as material, in the following terms:
“301. The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:
(i) is seeking leave to enter to accompany or join or remain with a parent or parents in one of the following circumstances:
…
(b) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child’s upbringing; or
(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care; and
(ii) is under the age of 18; and
(iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and
(iv) can, and will, be accommodated adequately without recourse to public funds, in accommodation which the parent or parents own or occupy exclusively; and
(iva) can, and will, be maintained adequately by the parent or parents without recourse to public funds; and
(ivb) does not qualify for limited leave to enter as a child of a parent or parents given limited leave to enter or remain as a refugee or beneficiary of humanitarian protection under paragraph 319R; and
(v) (where an application is made for limited leave to remain with a view to settlement) has limited leave to enter or remain in the United Kingdom; and
(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.
[5] Before the FTT the petitioner contended that paragraph 301 of the Immigration Rules (“the rules”) applied to her application, and that, if that paragraph were properly construed, her application ought to be successful. The FTT judge decided that the claim based on paragraph 301 failed first because Mrs N was not settled, and in any event because Mrs N had not had sole responsibility for the petitioner’s upbringing, and there were no serious and compelling family or other considerations which made exclusion of the petitioner undesirable. He considered whether the petitioner should succeed under Article 8 outside the rules and concluded that she should not.
[6] In her application to the UT for permission to appeal, the petitioner submitted that the FTT judge had not taken into account the best interests of the children (the petitioner herself, and S), and that he should have done so both in considering the correct construction of paragraph 301 and in dealing with the Article 8 claim; that he had erred in requiring “compelling circumstances” in relation to the Article 8 case, particularly where issues affecting the interests of children were involved; and that the FTT judge had erred in his construction of paragraph 301. She introduced a further argument, not raised before the FTT judge, or in the application for permission to appeal made to the FTT, that to deny someone in the petitioner’s position the opportunity to benefit from paragraph 301 amounted to discrimination which was unlawful by virtue of Articles 8 and 14 ECHR.
[7] The UT considered that the application for permission was submitted out of time, and refused to extend the period for receipt of it. The UT judge indicated that she would in any event have refused permission. She recognised that the FTT judge had erred in law in requiring under paragraph 301 that Mrs N be settled, but regarded the error as immaterial, as she considered that he had been entitled to find that a person with DL was not a person given limited leave “with a view to settlement” and to find an absence of sole responsibility and serious and compelling family or other considerations. She considered that an analysis of the best interests of the children would have made no difference to the approach to the rules or to Article 8. The UT decision makes no mention of the ground of appeal based on discrimination.
Summary of Arguments
[8] There is a preliminary issue as to whether the application to the UT for permission to appeal was made in time.
[9] A number of issues arise in relation to the application of paragraph 301(i). The petitioner contends that the leave granted to Mrs N was leave to remain with a view to settlement. That construction of the paragraph is disputed by the respondent. There is also an issue as to the fact finding by the FTT as to whether Mrs N had sole responsibility for the petitioner’s upbringing and as to whether there were serious and compelling family or other considerations which made the exclusion of the petitioner undesirable. The FTT made a finding in fact that Mrs N did not have sole responsibility for the petitioner’s upbringing, and that there were no serious and compelling family or other considerations making the exclusion of the petitioner undesirable. Those findings are attacked by the petitioner in this process. The respondent argues, on the merits, that the findings are unexceptionable and not made in error of law. Those findings mean that the petitioner cannot succeed, because she cannot satisfy the condition in paragraph 301(1)(b) or (c).
[10] The respondent argues that DL of the type granted to Mrs N is not leave given with a view to settlement. It is, rather, a grant outwith the Immigration Rules having regard to exceptional and compassionate circumstances prevailing at the time of the grant. Although settlement may become open to the individual in due course, the grant is not made to facilitate settlement.
[11] The petitioner argues, further, that if the construction of paragraph 301 proposed by the respondent is correct, the rule discriminates unlawfully against the children of parents granted DL to remain when compared with the children of parents given another form of limited leave to enter or remain.
[12] The respondent argues that I should not entertain any of the arguments raised in the petition because none of them satisfies the second appeals test. The respondent says that I am not bound by the decision of the Lord Ordinary who granted permission for this petition to proceed. Even if I were to take the view that one or more of the arguments about Rule 301 satisfied the second appeals test and was well-founded, the petition should fail because there are other points raised in the petition regarding the fact finding by the tribunal, essential to the ultimate success of the petition, which would not satisfy the second appeals test.
[13] The respondent necessarily, therefore, argues that I am not bound by the interlocutor of the Lord Ordinary granting permission in determining whether the application satisfied the second appeals test.
Was the Application to the UT Made in Time?
[14] The UT judge wrote the following:
“The renewal grounds of appeal have been lodged late, albeit by a few days. There has been no clear explanation for the delay when the solicitors had 28 days to lodge the appeal and in all the circumstances I refused to extend time. Had I admitted the application I would have refused permission”
[15] The petitioner relies in the petition on the terms of Rules 12 and 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/298) and section 7 of the Interpretation Act.
[16] Rules 12(2) and 21(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008/298 are, so far as material, in the following terms.
12(2) If the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.
21(3) An application for permission to appeal must be made in writing and received by the Upper Tribunal no later than—
…
(aa) in an asylum case or an immigration case where the appellant is in the United Kingdom at the time that the application is made—
(i) 14 days after the date on which notice of the First-tier Tribunal's refusal of permission was sent to the appellant; or
(ii) if the case is a fast-track case, four working days after the date on which notice of the First-tier Tribunal's refusal of permission was sent to the appellant;
(b) otherwise, a month after the date on which the tribunal that made the decision under challenge sent notice of its refusal of permission to appeal, or refusal to admit the application for permission to appeal, to the appellant.
[17] Section 7 of the Interpretation Act 1978 provides:
“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
[18] Permission was refused by an FTT judge on 24 May 2016. It was sent to the petitioner’s solicitor under cover of a letter dated 25 May 2016. 25 June 2016 was a Saturday. The next working day was Monday 27 June 2016. The petitioner’s solicitor sent the application for permission by special delivery on 24 June 2016. The petitioner has lodged an affidavit from her solicitor confirming this.
[19] Although the actual date of delivery is not mentioned in the petition, the petitioner has also lodged the special delivery receipt confirming that the UT received the application on 27 June 2016.
[20] I am satisfied that the application was received in time. Even if it had not been, by virtue of the provisions just referred to, service would be deemed by virtue of section 7 of the Interpretation Act 1978 to have been effected on 27 June 2016, the latest day on which the application should have been received in terms of the 2008 Rules. The UT judge was in error in thinking that the relevant period was 28 days, rather than one month.
Sole Responsibility and Serious and Compelling Family or Other Considerations
[21] Mr Webster submitted that the petition must fail because, even if the petitioner’s argument about the correct construction of paragraph 301 or her argument about discrimination were correct, the FTT judge had made unassailable findings regarding absence of sole responsibility and absence of serious and compelling family considerations. That meant that the petitioner could never succeed under paragraph 301 (b) or (c). The UT, in its reasons, specifically asserted that the FTT was entitled to find an absence of sole responsibility or serious and compelling family or other considerations. The challenge to these findings appears in paragraph 25 of the petition, essentially on the basis that there is not a proper factual basis for the findings in question. The petitioner’s argument regarding the treatment of serious and compelling family or other circumstances proceeds largely on the basis that the FTT judge erred in law in failing to make an assessment of the best interests of the petitioner and of her brother. That line of argument is also relevant to the FTT’s approach to Article 8.
[22] As I accept that the petition must fail if no criticism can be made of the findings on sole responsibility or serious and compelling family or other circumstances, I deal with these first.
Sole Responsibility
[23] The FTT judge found:
“it does not seem to me that that [Mrs N] has had sole responsibility for the upbringing of the child since the upbringing seems to me really to have been delegated to other people.”
[24] In any situation where a child is left in a country different from that in which her only parent is living, there will inevitably be some degree of delegation of day to day responsibility for the care and education of the child. It will occur, for example, when a child is attending a boarding school. The teachers and other staff there will have day to day responsibility for those matters. There may be others, outwith the school, who provide accommodation during holiday times, or provide other forms of assistance to the child. Such delegation, however, will not in all cases necessarily mean that the parent has not had sole responsibility for bringing up the child. A parent may in a variety of circumstances fulfil his or her responsibility for the upbringing of a child by delegating certain matters to other carers, paid or unpaid.
[25] If delegation of responsibility for care and education excludes the retention of sole responsibility for the upbringing of a child, it is difficult to see how any parent and child separated by the move of one of them to the United Kingdom from another country could ever come to be reunited under paragraph 301 if the child were joining a parent in the United Kingdom, rather than accompanying or remaining with the parent.
[26] I asked counsel in the course of the debate whether they were aware of any authority bearing on the assessment of “sole responsibility”. I was not directed to any relevant authority. As I discovered, however, there are in fact a number of cases bearing on this matter. TD (Paragraph 297(i)(e): “sole responsibility” Yemen [2006] UKAIT 00049 contains a review of the relevant case law, including a number of decisions of the Court of Appeal, and one of this Court, from 1993. The approach of the Tribunal is one which requires consideration of the facts and circumstances in each case, and which does not regard the question of delegation of some aspects of care as being determinative of the question, where only one parent is involved in the upbringing of the child.
[27] The Tribunal summarised the correct approach in the following way, at paragraph 52 of its judgment in TD:
“Questions of ‘sole responsibility’ under the immigration rules should be approached as follows:
i. Who has ‘responsibility’ for a child's upbringing and whether that responsibility is ‘sole’ is a factual matter to be decided upon all the evidence.
ii. The term ‘responsibility’ in the immigration rules should not to be understood as a theoretical or legal obligation but rather as a practical one which, in each case, looks to who in fact is exercising responsibility for the child. That responsibility may have been for a short duration in that the present arrangements may have begun quite recently.
iii. ‘Responsibility’ for a child's upbringing may be undertaken by individuals other than a child's parents and may be shared between different individuals: which may particularly arise where the child remains in its own country whilst the only parent involved in its life travels to and lives in the UK.
iv. Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility.
v. If it is said that both are not involved in the child's upbringing, one of the indicators for that will be that the other has abandoned or abdicated his responsibility. In such cases, it may well be justified to find that that parent no longer has responsibility for the child.
vi. However, the issue of sole responsibility is not just a matter between the parents. So even if there is only one parent involved in the child's upbringing, that parent may not have sole responsibility.
vii. In the circumstances likely to arise, day-to-day responsibility (or decision-making) for the child's welfare may necessarily be shared with others (such as relatives or friends) because of the geographical separation between the parent and child.
viii. That, however, does not prevent the parent having sole responsibility within the meaning of the Rules.
ix. The test is, not whether anyone else has day-to-day responsibility, but whether the parent has continuing control and direction of the child's upbringing including making all the important decisions in the child's life. If not, responsibility is shared and so not ‘sole’.”
[28] As I had not been addressed on TD I invited written submissions as to whether or not the approach summarised at paragraph 52 of the decision in TD was a correct statement of the law. The respondent agreed that it was, and drew attention to a further case in which the approach in TD was referred to with apparent approval, albeit only in the context of a renewed permission application: R (Parekh) v Secretary of State for the Home Department [2012] EWHC 3484 (Admin). The respondent’s submission made clear that she did not depart from her position that the FTT judge was entitled to reach the conclusion that he did.
[29] The petitioner accepted that TD contained a correct statement of the law, subject to qualification. The qualification was that because the purpose of paragraph 301 was to maintain or effect family unity, it gave effect to Articles 9 and 10 of the United Nations Convention on the Rights of the Child (“UNCRC”), and engaged Article 8 ECHR. This meant that the question of sole responsibility could not be reduced to a fact-finding exercise. Although the petitioner had referred to Articles 3 and 10 of the UNCRC as informing the proper construction of paragraph 301, she had not in that context referred to Article 9. Articles 3.1, 9.1 and 10.1 read:
“3.1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
9.1 States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
10.1 In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.”
[30] The submission, in summary, was this. Family reunification is a matter of substantive right (Article 9) to be expedited as a matter of procedural right (Article 10), to be qualified by the receiving State Party only in the best interests of the child. It came close to a submission that applications by children to enter to join a single parent must be granted unless the best interests of the child dictate otherwise. In deciding whether a parent has sole responsibility, in order to give effect to the purpose of paragraph 301, which is to maintain or effect family unity, the starting point should be that it is in the best interests of a child to be with her parent or parents. In that context cession of an element of control and direction of the child’s upbringing to another person, even where decision making in respect of important matters has been delegated, is not particularly significant. Point (ix) of the analysis in TD is therefore not good law. In considering sole responsibility where there is only one parent the starting point should be that the condition is prima facie satisfied. Only in exceptional circumstances (under reference to C v Belgium (2001) 32 EHRR 2, paragraph 25), or where it is not in the best interests of the child, should the right to family reunification for those able to otherwise satisfy the requirements of Paragraph 301 be withheld.
[31] I do not accept that the approach to fact finding on the matter of sole responsibility set out in TD requires to be modified by virtue of the United Kingdom’s obligations under the UNCRC or because of the requirements of Article 8 ECHR. The UNCRC is not fully incorporated in domestic law. I note that although Article 10.1 refers back to Article 9.1, the Convention does not impose any obligation on the receiving State Party to grant an application. The guidance in TD is that the decision should be made on the basis of all the evidence. An assessment of whether a parent has had sole responsibility will include a consideration of evidence as to the nature of the relationship between the parent and the child in any given case. The decision maker will be able to assess whether particular decisions in the child’s life are or are not important ones in the context of the evidence as a whole.
[32] The range of circumstances that may arise in cases of this sort is considerable, and it is difficult to say, as the petitioner seems to suggest, that there must be a presumption, requiring to be rebutted in every case, that reunion with a parent will be in the best interests of a child. The nature and quality of her relationships with the parent and with persons other than the parent seem plainly to be relevant factors.
[33] It is right that, as the petitioner says, mere separation of parent and child does not prevent the application of Article 8 ECHR to the family life that they share. The nature and quality of particular relationships, however, is relevant both to the weight to be given to the family life in question when balanced against some competing factor, such as the need to maintain effective immigration control, and to what will be in the best interests of a particular child. The petitioner’s submission is effectively one that sole responsibility is not the right criterion; on her analysis shared responsibility involving cession of an element of control and direction of the child’s upbringing should not be fatal to success. I remind myself that this chapter of submission relates to the way in which a decision maker ought to address a particular criterion when making a decision within the rules, and that no attack was made in this petition on the lawfulness of that criterion by reference to Article 8 or otherwise.
[34] The petitioner’s written submission went in some respects beyond what I had invited (from the penultimate sentence of paragraph 14 onwards), and sought to advance further propositions about considerations making the child’s exclusion undesirable. I did not take them into account, although I record that they raised no issue which I had not already considered.
[35] Whether a parent “has had sole responsibility” is a question which will turn on the facts of a particular case. Careful fact finding will be required in every case as to the circumstances which tend to support or undermine a contention that a parent has had sole responsibility, while bearing in mind that delegation of some aspects of care will not necessarily exclude such responsibility. From the FTT judge’s very brief finding on this point, it is not possible to discern anything other than that he seems to have regarded the delegation as conclusive of whether she had sole responsibility for the petitioner’s upbringing. There is little by way of fact finding in his decision directed at the question of sole responsibility. He refers to a particular episode during which Mrs N appears to have been concerned about the way the petitioner was being cared for in the context of a temporary cessation of regular contact and describes the evidence as “unsatisfactory”. That episode may well be of some significance in an overall assessment in relation to sole responsibility, but there is no indication that the FTT judge had in mind the approach he ought to take to sole responsibility or that he carried out a systematic assessment of the matter.
[36] Paragraph 52 i, ii, and v-ix of the decision in TD are of particular relevance in a case such as this, where only one parent is involved in the upbringing of the child. The FTT judge did not follow the approach desiderated in TD in determining whether Mrs N had sole responsibility for the petitioner’s upbringing, and so erred in law. The UT erred in failing to discern this error of law when considering the application for permission and instead asserted that the FTT judge had been entitled to make the finding that he had.
Assessment of the Best Interests of the Children
Serious and Compelling Family or Other Considerations, and Article 8
[37] The petitioner argued that the UT had erred in finding that an analysis of the best interests of the children would not have made any material difference to the FTT judge’s approach to the decision under the rules or Article 8.
[38] The duty to assess what is in the best interests of a child affected by a decision or other measure which engages Article 8, and the reasons why such an assessment is necessary, are set out by the Supreme Court in Zoumbas v Secretary of State for the Home Department 2014 SC (UKSC) 75, at paragraphs 10 and 11:
“10. In their written case counsel for Mr Zoumbas set out legal principles which were relevant in this case and which they derived from three decisions of this court, namely ZH (Tanzania) v Secretary of State for the Home Department , H v Lord Advocate and HH v Italy . Those principles are not in doubt and senior counsel on behalf of the Secretary of State did not challenge them. We paraphrase them as follows: (1) The best interests of a child are an integral part of the proportionality assessment under Art 8 ECHR ; (2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration; (3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) It is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an Art 8 assessment; and (7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
11. These principles arise from the UK's international obligations under the United Nations Convention on the Rights of the Child , and in particular Art 3.1 which provides:
‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’”
[39] Where a decision requires an evaluation of the proportionality of a measure under Article 8, it is important to have established what is in the best interests of an affected child. Without that there cannot be a proper assessment of whether those interests are outweighed by other considerations. I accept that, while S was not a party to the appeal, an assessment of what was in his best interests ought to have been made: Beoku-Betts v Secretary of State for the Home Department [2009] AC 115.
[40] The petitioner argued that the FTT judge should have carried out an assessment of the best interests of the children and that his failure to do so vitiates his conclusions as to whether there were serious and compelling family or other circumstances which made exclusion of the petitioner undesirable, and as to the petitioner’s case under Article 8 outside the rules. That is the underlying basis for the challenge to this aspect of the UT judge’s refusal of permission.
[41] The assessment should have been carried out. Its absence reflects an error of law. I have, however, come to the view that the UT judge was entitled to conclude that this is not a case in which an analysis of the interests of the petitioner or of S would have made a material difference to the outcome. I do not reach that conclusion without hesitation. There was information in a statement dated 8 July 2015 from Mrs N, and in a letter from the petitioner herself, which gives rise to concern about some aspects of the arrangements for the petitioner’s care. It is not obvious that the FTT judge engaged with that material as he would have been bound to had he carried out an assessment of the petitioner’s best interests. That is unsatisfactory.
[42] As the UT judge observed, however, the parties had been separated for a long time, and the petitioner was at the time of the application at or nearly at an age where she would be living independently. The duration of the separation is a relevant consideration, although Article 8 remains engaged, notwithstanding separation. The age of the child appears to me also to be a relevant consideration. It would also be a relevant consideration in determining what her best interests might require. The use of the words “serious and compelling” in the rules seems to be intended to set a relatively high threshold in relation to the sorts of circumstances that will suffice.
[43] So far as the petitioner’s own interests are concerned, while the findings in paragraph 33 are brief, they appear to me to have a foundation in the evidence available to the FTT judge, to be findings that he was entitled to make, and findings which entitled the UT judge to conclude that an explicit assessment of her interests, on the basis of the available material, would not have led to a different conclusion in the context of Article 8 ECHR or in the assessment of whether there were serious and compelling family or other considerations under rule 301.
[44] The position is different in relation to S as there is simply no mention of his views or circumstances. S, however, has not been in the same country as the petitioner since he was a baby. He has never known a time when he and the petitioner have lived in a family together. At its highest, the information before the FTT judge was that S is obsessed with the petitioner and is very keen to meet her. The sponsor’s statement referred to S being down, and crying, but the suggestion that any episodes of low mood are related to the separation does not appear to be more than speculation on the part of Mrs N. That being so, the UT judge was entitled to conclude that the information available as to his interests, had it been considered, would not have affected the outcome.
Construction of Paragraph 301
[45] Ms Irvine argued that DL of the type granted to Mrs N was leave with a view to settlement for the purpose of paragraph 301. In support of that contention she referred to the lack of a clear distinction, in some contexts at least, between grants within and outwith the rules. She submitted that DL is a form of limited leave, and one explicitly recognised in policy guidance as leading to settlement. She referred to the absence of any indication in paragraph 301, in contrast with other provisions, that leave must be of a particular type. She went on to make submissions about how I should construe paragraph 301 having regard to the obligations of the United Kingdom under the UNCRC.
[46] Counsel pointed out that the rules seek to regulate matters which have been or continue to be regulated other than under the immigration rules. She gave the example of the current application of paragraphs of the immigration rules (paragraphs 6 and paragraphs 245CD and 245HD) to self-employed lawyers and Jewish Agency Employees. Paragraphs 245CD and 245HD make provision respectively for the requirements for indefinite leave to remain in respect of these categories of person. Paragraph 6 (interpretation) defines those categories in relation to persons granted leave on particular bases outside the rules. She cited also the circumstance that an application for DL must be made on forms specified by the Asylum Policy Instruction: Discretionary Leave (6/10 at page 20).
[47] Counsel referred to amendments to the rules which took effect on 9 July 2012, that is, after Mrs N was first granted DL. Before 9 July 2012 DL was used in a variety of circumstances, including circumstances where leave was being granted to comply with the respondent’s obligations under Article 8 ECHR. After 9 July 2012 leave to remain on the basis of Article 8 was to be dealt with principally within the Immigration Rules (Appendix FM and paragraphs 276ADE(1) to 276CD), and otherwise by grants of leave outside the rules for Article 8 reasons. The respondent’s published policy, Asylum Policy Instruction: Discretionary Leave (v7.0 August 2015) (6/10), contains the following, at paragraph 10.1:
“Those granted leave under the DL policy in force before 9 July 2012 will normally continue to be dealt with under that policy through to settlement if they continue to qualify for further leave on the same basis as their original DL was granted (normally they will be eligible to apply for settlement after accruing 6 years’ continuous DL …), unless at the date of decision they fall within the restricted leave policy.”
[48] She submitted that this passage indicated that the respondent regarded at least the pre-July 2012 form of DL as being a path to settlement. This form of DL was therefore leave with a view to settlement for the purposes of paragraph 301.
[49] Ms Irvine referred to other provisions of the rules in which, in contrast to paragraph 301, leave requires to be leave of a particular type:
“E-DVILR.1.2. The applicant’s first grant of limited leave under this Appendix must have been as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen or a person settled in the UK under paragraph D-ECP.1.1., D-LTRP.1.1. or D LTRP.1.2. of this Appendix and any subsequent grant of limited leave must have been:
(a) granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen or a person settled in the UK under paragraph D-ECP.1.1., D-LTRP.1.1. or D LTRP.1.2. of this Appendix; or
(b) granted to enable access to public funds pending an application under DVILR and the preceding grant of leave was granted as a partner (other than a fiancé(e) or proposed civil partner) of a British Citizen or a person settled in the UK under paragraph D-ECP.1.1., D-LTRP.1.1. or D-LTRP.1.2. of this Appendix; or
(c) granted under paragraph D-DVILR.1.2.”
A similar point could have been made about paragraph 289A which, like paragraph 301 is in Part 8 of the Rules, and which is the predecessor of E-DVILR.1.2.
[50] Counsel submitted that Article 3.1 of the UNCRC imposed a requirement that the best interests of any children be a primary consideration in all actions concerning them. That article, and Article 10.1 are quoted elsewhere in this Opinion. There was a domestic legal obligation in section 55 of the Borders, Citizenship and Immigration Act 2009 for the respondent to safeguard and promote the welfare of children who are in the United Kingdom. The respondent had a published policy, Every Child Matters: Change for Children: Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children (November 2009), in the following terms:
“The statutory duty in section 55 of the 2009 Act does not apply in relation to children who are outside the United Kingdom. However UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspect that a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances international or local agreements are in place that permit or require children to be referred to the authorities of other countries and UK Border Agency staff will abide by these.”
The construction which the petitioner proposed was the only one consistent with those duties towards children, the United Kingdom’s obligation under Article 10.1 to treat applications for family reunification in a positive, humane and expeditious manner, and with the prohibition of discrimination in Article 14 ECHR read with Article 8 ECHR.
[51] I accept that limited leave simply means any form of leave that is not indefinite leave. I accept, also, that DL of the type granted to Mrs N is leave which, if it continues to be granted for a sufficient period, is likely normally to lead to settlement.
[52] In my view there is no basis for distinguishing between DL granted before 9 July 2012 and leave granted after that date in the context of considering whether the leave was granted with a view to settlement for the purposes of paragraph 301. Leave granted after 9 July 2012 can still lead to settlement, although the period necessary to qualify for settlement is 10 years, rather than 6. What the policy expresses is that continuous periods of limited DL, whether granted before or after 9 July 2012 will give rise to eligibility to apply for settlement. The question is whether leave that may, if continuous for a sufficient period, give rise to eligibility for settlement, and in all likelihood to a successful application for settlement, is leave with a view to settlement of the sort contemplated in paragraph 301.
[53] It is true, as the petitioner says, that there is not always a bright line between decisions within and outwith the rules. There is provision in the rules for matters in relation to which decisions in the past have been taken outside the rules, or which, as in the instance of DL, continue, to be taken outside the rules. I find that circumstance of limited assistance in construing the expression “limited leave to enter or remain in the United Kingdom with a view to settlement” in paragraph 301.
[54] The drafting style in the rules is not particularly consistent. The drafter could have chosen to specify particular forms of leave within the rules in paragraph 301 as he has done in other provisions. That he did not do so, however, is not conclusive. In construing the phrase “limited leave to enter or remain in the United Kingdom with a view to settlement”, consideration of other rules in the same part of the Immigration Rules is in my view of assistance. The provisions of Part 8 of the rules, including paragraph 301, apply only by virtue of transitional provisions. Other provisions in Part 8 continue to provide an immediate context, from the point of view of construction, for paragraph 301. Paragraphs 281 and 282, and 295A and 295B make provision for various forms of leave with a view to settlement, including leave limited to periods of 27 months, on the basis of whether particular requirements, specified in paragraphs 281 and 295A, have been met.
[55] Neither party referred me to the provisions in Appendix FM (paragraph E-ECC.1.6) relating to entry clearance for children. Appendix FM is the successor to Part 8. The provisions are worded differently from paragraph 301. They distinguish between parents who have limited leave to enter or remain and those who are being granted or have been granted entry, but seem to make it explicit that the leave or entry clearance of the parent must be under the Appendix in question.
[56] Gibbs J in R (Acan) v Immigration Appeal Tribunal [2004] EWHC 297 (Admin) required to consider arguments similar to that presented by the petitioner. Two additional cases, ECO Nairobi v Ilunga, 11 November 2013 (Appeal No OA/13473/2012) and Mowatt v ECO, Kingston 24 July 2015 (Appeal no OA/06469/2014) were cited in argument. They are both decisions of the Upper Tribunal, similar in result to Acan. They do not add anything to the discussion in Acan.
[57] In Acan there were four claimants, two of whom were the biological children of the female sponsor, and two of whom had been brought up by her as her own following an informal adoption in Uganda. The sponsor left them in Uganda and came to the United Kingdom. She was granted a form of leave known at the time as exceptional leave to remain. It was based on a concession following a period of backlog in processing claims. The Secretary of State confirmed that her four-year grant of exceptional leave would normally lead to a grant of settlement. The decision letter in which she was granted exceptional leave stated that an application for her children to join her could not normally be considered until 4 years from the date of the letter. The claimants sought entry clearance before the end of the 4 year period and were refused.
[58] The claimants argued that paragraph 301 should have been applied, and that the reference in it to a parent having limited leave to enter or remain in the United Kingdom with a view to settlement encompassed persons in the position of the sponsor. The argument in Acan is similar to that for the petitioner in the present case. DL, like exceptional leave, is, as a matter of fact, leave that is likely to result in settlement, absent some particular bar at the point of the eventual application for settlement, such as fraud, bad character or threat to national security. The question is whether the expression has a narrower and more technical meaning, read in the context of the Immigration Rules, than “where settlement is likely to result.”
[59] Gibbs J took the view that Part 8 formed a discrete scheme, and that the provisions in paragraph 301 and the following paragraphs constituted part of a carefully constructed scheme, intended to flow from the particular situations contemplated by the earlier rules in the same Part, and to which I refer above. The relevant passage is at paragraphs 81 to 86 of his judgment. I take the same view. Other provisions in Part 8 indicate that the leave in question is leave granted within the rules in that Part. The successor provisions in Appendix FM express that with greater clarity. It follows that I conclude that the expression “limited leave to enter or remain in the United Kingdom with a view to settlement” is not intended to encompass DL. I do not consider that I can properly construe the expression in any other way, given its context within the structure of the rules. To do so would not only require rewriting of the rule, but removing it from its place within the structure of Part 8. It does not provide for family reunification where the parent has been granted DL. It is not intended to so do.
Discrimination
[60] The petitioner’s argument is that if paragraph 301 does not apply to her, that represents unlawful discrimination in the way in which the state approaches a decision which engages her Article 8 rights, based on Mrs N’s status as a person with DL. There has therefore been a violation of the petitioner’s rights under Article 14 ECHR read with Article 8.
[61] The respondent seeks to meet that argument in a variety of ways. She argues, first, that no argument of this sort was made to the FTT and that the FTT cannot therefore be faulted for not discussing it. This line of argument was first raised in the application to the UT for permission to appeal to the UT. The UT did not refuse to grant permission because the argument had not been made in the FTT. It did not explicitly engage with the argument, although, in fairness, it may have seen no need to do so, given what it said about the FTT’s findings on matters that would preclude the application of paragraph 301. The UT is not confined, when considering permission applications, to arguments made in the FTT. It is not even confined to arguments raised in the permission application. There may be lines of argument– Robinson points – that the UT itself should recognise notwithstanding their absence from the permission application. It has a discretion to recognise points of law not raised in the application. In a slightly different context, where a point was not raised the FTT, nor in the claimant’s notice of response to the Secretary of State’s appeal, the UT judge still had a discretion to consider it when remaking a decision: Kizhakudan v Secretary of State for the Home Department [2013] INLR 38. The line of argument was in this case placed before the UT, and it should have engaged with it. If it did not because of its view that the error was immaterial, then it erred in law, given my conclusions about sole responsibility.
[62] I have already dealt with the respondent’s contention that the findings in relation to sole responsibility and serious and compelling family or other circumstances are a bar to success.
[63] Article 14 ECHR provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”
[64] Gibbs J was presented with a similar argument in Acan. He concluded that the circumstance that there was an absence of provision for the children of individuals granted what was then called exceptional leave on a discretionary basis did not mean that there was a breach of the claimants’ human rights. He reached this view on the basis that the retention of discretionary powers was necessary for the purposes of fair and flexible immigration control, and because the exercise of those discretionary powers was itself open to challenge on human rights grounds. The discussion in Acan on this point is brief. I readily recognise the importance of discretionary powers and their role in maintaining fairness and flexibility. Their existence, however, does not seem to me to provide a complete answer if there is indeed a difference in treatment of a child based on the status of a parent who has limited leave to remain with a view to settlement on the one hand, and the status of a parent who has DL on the other.
[65] The House of Lords, in AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 identified certain important features of the jurisprudence regarding Article 14 (Baroness Hale of Richmond at paragraphs 21-25):
“21. First, as was said in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 , para 71:
‘Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions. Although the application of article 14 does not necessarily presuppose a breach of those provisions—and to this extent it is autonomous—there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.’
This instantly makes the article 14 right different from the open-ended guarantees of the ‘equal protection of the laws’, such as are contained, for example, in the 14th Amendment to the United States' Constitution and in the 12th Protocol to the European Convention (to which the United Kingdom is not a party). Whether the difference in treatment ‘falls within the ambit’ of a Convention right is not always straightforward: see the helpful explanation of Lord Nicholls of Birkenhead in M v Secretary of State for Work and Pensions [2006] 2 AC 91 , paras 13–16 …
22. Secondly, as the court first explained in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252 , 284, para 10:
‘In spite of the very general wording of the French version (‘sans distinction aucune’), article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised … The competent national authorities are frequently confronted with situations and problems which, on account of the differences inherent therein, call for different legal solutions; moreover certain legal inequalities tend only to correct factual inequalities.’
The court then went on to “look for the criteria which enable a determination to be made as to whether or not a given difference in treatment … contravenes article 14 ”. They found these in the principle which they articulated then and has since been repeated many times over. A recent example is in Stec v United Kingdom (2006) 43 EHRR 1017, para 51:
‘A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.’
23. This instantly makes the article 14 right different from our domestic anti-discrimination laws. These focus on less favourable treatment rather than a difference in treatment. They also draw a distinction between direct and indirect discrimination. Direct discrimination, for example treating a woman less favourably than a man, or a black person less favourably than a white, cannot be justified. This means that a great deal of attention has to be paid to whether or not the woman and the man, real or hypothetical, with whom she wishes to compare herself are in truly comparable situations. The law requires that their circumstances be the same or not materially different from one another.
24. It will be noted, however, that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether ‘differences in otherwise similar situations justify a different treatment’. Lord Nicholls put it this way in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, para 3:
‘the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’
25. Nevertheless, as the very helpful analysis of the Strasbourg case law on article 14, carried out on behalf of Mr AL, shows, in only a handful of cases has the court found that the persons with whom the complainant wishes to compare himself are not in a relevantly similar or analogous position (around 4.5%). This bears out the observation of Professor David Feldman, in Civil Liberties and Human Rights in England and Wales , 2nd ed (2002), p 144, quoted by Lord Walker of Gestingthorpe in the Carson case, at para 65:
‘The way the court approaches it is not to look for identity of position between different cases, but to ask whether the applicant and the people who are treated differently are in ‘analogous’ situations. This will to some extent depend on whether there is an objective and reasonable justification for the difference in treatment, which overlaps with the questions about the acceptability of the ground and the justifiability of the difference in treatment. This is why, as van Dijk and van Hoof observe … ‘in most instances of the Strasbourg case law … the comparability test is glossed over, and the emphasis is (almost) completely on the justification test’.”
[66] The respondent seems to accept that being a parent with DL, or the child of a parent with DL, is an “other status” for the purposes of Article 14 ECHR. I note that in A v Secretary of State for the Home Department 2016 SC 776 an Extra Division found that there was unlawful discrimination in policy regarding indefinite leave to remain for victims of domestic violence who were the spouses or former spouses of refugees, when compared with that regarding indefinite leave to remain for victims of domestic violence who were spouses or former spouses of British citizens or an individual settled in the United Kingdom. Hode & Abdi v United Kingdom (2013) 56 EHRR 27 concerned a claim of a violation of Article 14 read with Article 8. In that case the first applicant was granted asylum in the United Kingdom. He then married the second applicant in Djibouti. The second applicant’s visa application was refused. The couple did not qualify for family reunion under the Immigration Rules which at the time applied only to spouses who were part of a refugee’s family unit before he left his country of permanent residence.
[67] The submissions of the respondent, correctly in my view, proceed on the basis that Article 8 is engaged. Any difference in treatment is, according to the respondent, justified. The respondent pleads, at paragraph 25, and without further elaboration or explanation:
“… any difference in treatment (which is not admitted) is justified in the light of the exceptional compassionate circumstances required to justify an individual grant of Discretionary Leave where leave within the Immigration Rules has been refused.”
[68] Although, in the Answers, the respondent does not admit that there is a difference in treatment, the written argument proceeds on the basis – again, correctly in my view – that there is. The respondent argues, however, that it is justified. The written argument for the respondent addresses the question of justification in the following terms:
“The non-availability of the re-unification route under para 301 for children of those holding discretionary leave reflects the nature of discretionary leave as an exceptional grant in compassionate circumstances for those who have no right to remain in the United Kingdom under the Immigration Rules yet for whom return to their country of origin would be unjustifiably harsh and for whom settlement is not the result of regulated migration (ie in terms of the Immigration Rules) to the United Kingdom.”
[69] The passage quoted from the written argument is coy as to the justification for treating the children of those who have DL differently from those who enter by routes designed to facilitate settlement. It confirms that a difference in treatment exists. It contains no recognition that grants of DL made before 9 July 2012 may have been made on bases that would now result in grants of leave in terms of the rules. Justification does not simply require an explanation that there is a difference. It requires that the state explain why there is a difference, so that that explanation may be examined. The passage quoted does not explain why the circumstance that an individual has been granted DL leads to the difference in treatment. In the course of oral submission, and following questions from me, counsel gave the following justification for the difference in treatment. He submitted that the aim of the different treatment is to discourage individuals from entering the country unlawfully and using their personal circumstances to justify a grant of DL to remain, on the basis of which they may then seek to bring their family members to the United Kingdom. Individuals who make applications to enter or remain based on recognised routes to settlement are quite properly placed in a different position.
[70] I asked counsel whether the respondent could provide statistics or other information indicating whether attempts to enter or remain by children of individuals with grants of DL represented a problem, or a problem of a particularly widespread nature, or whether such attempts were particularly numerous. I was told that there was no information of that sort available.
[71] I was provided with no information regarding active consideration by the respondent of whether there should or should not be provision for family reunion for children of individuals with DL similar to that made under paragraph 301 of the rules. Similarly, in so far as justification was offered, it was very limited in its content. It was expanded upon significantly, and for the first time, in the course of oral submissions for the respondent. The respondent offered no evidence of any kind vouching the proposition that there was a need to discriminate as to the provision made for the children of persons admitted with a view to settlement as opposed to that made for the children of persons given DL. The absence of information is surprising in a context where the respondent seeks to advance a defence of justification.
[72] In my view there is on the face of matters a difference in treatment of children who seek limited leave to enter or remain, based on the immigration status of their parents. It is a difference in the availability of family reunion and therefore engages Article 8. That is not necessarily an unlawful difference in treatment. Its lawfulness depends on whether or not the state can demonstrate justification for it.
[73] In A the Extra Division was addressed in some detail as to the standard of review in cases of this sort, where justification is an issue: paragraphs 37-43 and 48-59, and authorities cited there. Many of the same authorities were cited in this application: Mathieson v Work and Pensions Secretary [2015] 1 WLR 3250, paragraph 24; Stec v United Kingdom (2006) 43 EHRR 74, paragraph 51; Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545, paragraph 16; R(MA) v Secretary of State for Work and Pensions [2017] 1 WLR 519, paragraph 49; Swift v Secretary of State for Justice [2014] QB 373, paragraphs 24-25.
[74] In addition to the authorities just referred to, counsel for the respondent referred to In re Brewster [2017] 1 WLR 519, a decision of the Supreme Court regarding discrimination precluding a cohabitee’s right to a survivor’s pension. The decision post-dates the consideration of justification by the Inner House in A. The judgment of the court, handed down by Lord Kerr of Tonaghmore, from paragraphs 48 to 52, includes passages of reasoning of general application to the approach that must be taken when considering whether the state has demonstrated justification for a difference in treatment.
“48. The starting point in the analysis of whether there is objective justification for interference with the claimant's right to property must be the duty of the state to ‘secure’ her entitlement to equal treatment. Unlike, for instance, the duty under article 8 of the Convention, which enjoins the state to respect the citizen's right to a private life etc, article 14 requires of the state that it should ensure that her rights under the Convention are in place unless there is objective justification for denying them to her. The European Court of Human Rights (‘ECtHR’) has been careful to question whether discrimination in the enjoyment of survivors' rights based on some prior failure to ‘regularise’ a relationship has been justified: Marckx v Belgium (1979) 2 EHRR 330. In that case the ECtHR held that the limitations placed on the capacity of an unmarried mother to give and bequeath, and her child to take and inherit, property were discriminatory if they had no objective and reasonable justification in the sense that there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised: para 33. The obligation to secure rights must require a greater level of vigilance on the part of the state authorities than is animated by a duty to have respect for a particular species of right. The duty to secure rights calls for a more proactive role than the requirement to respect rights.
49. The question whether justification has been demonstrated must be assessed objectively: see R (SB) v Governors of Denbigh School [2007] 1 AC 100, para 30, per Lord Bingham of Cornhill. That is not to say, however, that the court should substitute its view for that of the decision-maker. Indeed, it may be appropriate to accord a wide margin of discretionary judgment to the conclusion of a decision-maker, particularly where it is the legislature that makes the choice and where the conclusion lies within the field of socio-economic policy. Thus, for instance, in Swift v Secretary of State for Justice [2014] QB 373 , where a claim pursuant to section 1(3)(b) of the Fatal Accidents Act 1976 was dismissed because, although the claimant was a cohabiting partner of the deceased, she did not meet the condition of having lived in the same household for a period of two years immediately before the date of death, it was held that Parliament was better placed than the courts to appreciate what was in the public interest on an issue of socio-economic policy: para 24.
50. But the margin of discretion may, of course, take on a rather different hue when, as here, it becomes clear that a particular measure is sought to be defended (at least in part) on grounds that were not present to the mind of the decision-maker at the time the decision was taken. In such circumstances, the court's role in conducting a scrupulous examination of the objective justification of the impugned measure becomes more pronounced. An example of this is to be found in Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420 , paras 46–47, where Lord Mance asked:
‘what is the position if a decision-maker is not conscious of or does not address his or its mind at all to the existence of values or interests which are relevant under the Convention? The court is then deprived of the assistance and reassurance provided by the primary decision-maker's ‘considered opinion’ on Convention issues. The court's scrutiny is bound to be closer, and the court may … have no alternative but to strike the balance for itself, giving due weight to such judgments as were made by the primary decision-maker on matters he or it did consider.’
51. The claimant has submitted that where the decision-maker has not made any judgment, in advance of its decision, about the factors which it later deploys in support of that decision, ‘no institutional deference can be due to such post hoc logic’. Ms Mountfield QC, who appeared for the claimant, has argued that those factors must be judged on their own terms. They should be given only such weight as their cogency and any supporting evidence warrant. While accepting that such factors could, in principle, attract weight as a result of the particular experience or expertise of the deciding body, she argues that the court should not exercise restraint by virtue of the body's constitutional responsibility for taking the decision, because the factors advanced post hoc did not form any part of the reasoning behind the body's discharge of its function.
52. I am not prepared to accept this submission without qualification. Obviously, if reasons are proffered in defence of a decision which were not present to the mind of the decision-maker at the time that it was made, this will call for greater scrutiny than would be appropriate if they could be shown to have influenced the decision-maker when the particular scheme was devised. Even retrospective judgments, however, if made within the sphere of expertise of the decision-maker, are worthy of respect, provided that they are made bona fide.”
[75] As the Court in A identified, there may be a degree of tension in the authorities between an approach whereby a justification will be rejected only if it is manifestly without foundation and one requiring a more intrusive or intensive review. It noted that where government makes policy choices, particularly in the fields of social and economic policy, those choices require significant respect, with the result that courts will be slow to substitute their views for those of the executive. The Court determined that it did not require to examine in depth the standard of review because it was satisfied, even on the application of the higher test of whether the justification was manifestly without foundation, that the justification must be found wanting: paragraph 80.
[76] This was in a context in which, as the Court narrated, also at paragraph 80:
“This is not in our view a case in which a policy choice on the critical question has in fact been made, with due consideration of the issues, looked at in the light of the government's policy both in relation to refugees and domestic violence. In the absence of any such choice or consideration, or any reasonable basis upon which a refugee could be equiparated to a worker or student, or the reasonable expectations of their spouses being as limited as those of the spouses of students or workers, and having regard to the effect on the spouses of refugees, as well as the underlying aim of the domestic violence concession, we cannot say that the difference in treatment is proportionate. The position of those such as the reclaimer has simply not been brought into consideration. The effect on them is not an informed choice made by government upon due consideration, but appears to be an unintended by product of the changes introduced in 2005.”
[77] I take a similar approach in this case, and for essentially the same reasons.
[78] I have been presented with no material indicating that the difference in treatment was the result of due consideration of the issues which might inform a policy choice. In the absence of any such material, it is difficult to reach any conclusion other than that the purported justification was manifestly without foundation. No foundation has been demonstrated. The difference in treatment is unlawful. Counsel appeared to suggest, under reference to Brewster, that the judgment in this case might be a retrospective one, although he did not say in terms that it was. I entirely accept that retrospective judgments may provide a proper justification for a policy, although they are likely to be scrutinised with great care. If the submission made to me for the respondent was the result of a retrospective judgment about justification, I would have expected particular care to be taken to present material which showed the foundation for that retrospective judgment. Again, no such material has been presented.
[79] I therefore conclude that there is a difference in treatment for which the respondent has not demonstrated justification. I have reached this view without reference to the United Kingdom’s obligations under Articles 9 and 10 of the UNCRC. Those obligations, however, tend to reinforce the need for clear justification. States Parties are to ensure that children are not separated from their parents against their will, and are under an obligation to treat applications for the purposes of family reunification in a positive, humane and expeditious manner. Against that background, justification for differences in the treatment of children in relation to the provision made for them to join their parents, made on the basis of the immigration status of their parents, requires careful scrutiny.
Arguments Concerned with the Second Appeals Test
Is the Decision to Grant Permission Conclusive as to Whether the Application Satisfies the Second Appeals Test?
[80] The respondent argues that this is not a petition where the test in R(Cart) v Upper Tribunal [2012] 1 WLR 3273 and Eba v Advocate General for Scotland 2012 SC (UKSC) 1 is satisfied. The petitioner responds, first, that this issue has already been decided by the Lord Ordinary who granted permission to proceed, and, second, and in any event, that the test is, on the merits of the case, satisfied.
[81] The petitioner’s argument on this point arises from the terms of section 27B of the Court of Session Act 1988. Section 27B provides:
“27B (1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.
…
(3) Where the application relates to a relevant Upper Tribunal decision, the Court may grant permission under subsection (1) for the application to proceed only if it is satisfied that—
(a) the applicant can demonstrate a sufficient interest in the subject matter of the application,
(b) the application has a real prospect of success, and
(c) either—
(i) the application would raise an important point of principle or practice, or
(ii) there is some other compelling reason for allowing the application to proceed.
…
(6) In this section, “a relevant Upper Tribunal decision” means—
…
(b) a decision of the Upper Tribunal in an appeal from the First-tier Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007.”
[82] The petitioner says that the decision of the Lord Ordinary to grant permission by his interlocutor is a determination of the question which he required to consider under section 27(3)(c). It is not open to me to revisit the matter, it being the subject of determination by interlocutor of another Lord Ordinary. The interlocutor itself does not disclose whether the Lord Ordinary was satisfied in relation to section 27(3)(c)(i) or (ii), or both.
[83] The respondent argues that all three of the assessments made by a Lord Ordinary under section 27(3) (a), (b) and (c) are essentially provisional in nature, and that none represents a conclusive determination of any issue in the petition. The assessment in subsection (3)(b) is obviously not a determination of the merits of the petition, and subsections (3)(a) and (c) should be read in a similar manner. It might be, for example, that despite “sufficient” interest being shown on examination of the papers at the permission stage, a determination as to whether a petitioner had standing would require some examination of factual issues at a later stage.
[84] The respondent relied strongly on the absence of any provision allowing a respondent to reclaim against a grant of permission. If a grant of permission were determinative of the issue in section 27B(3)(c), then the respondent would be deprived of any opportunity to challenge the proposition unless and until reclaiming against an adverse decision on the merits of the application. I note that some doubt as to the effect of RCS 38.3(3) as prohibiting reclaiming against grants of permission is raised in the annotations at paragraph 58.7.4 of Volume 8 of the Parliament House Book. I note also that a slightly different argument on this point appears to have been presented to Lord Boyd of Duncansby in SA and others v Secretary of State for the Home Department [2017] CSOH 117 (at paragraph 38).
[85] Similar arguments were considered by Lord Mulholland in CW and others v Secretary of State for the Home Department [2016] CSOH 163. Counsel informed me that Lord Mulholland had not been addressed on the point as fully as I was. The interlocutor in CW narrated that the Lord Ordinary was satisfied “that the petition would raise an important point of principle or practice or there is some compelling reason for allowing the petition to proceed…” (emphasis added).
[86] Lord Mulholland heard a submission that because of the terms of the interlocutor, which left the basis of the grant unclear, the issue as to whether the petition raised an important point of principle or practice or some other compelling reason was still live for his consideration. He decided that it was not open to him to review the decision of the Lord Ordinary who had granted permission. He noted that while the terms of the interlocutor might be unclear, the terms of the plea in the petition regarding the Eba test referred only to an important point of principle or practice.
[87] There is a curiosity in this case, in that the interlocutor granting permission does disclose the basis on which the Lord Ordinary granted permission by reference to section 27B(3)(c). It does not mention section 27B(3)(c) at all, as one might expect where the application concerns a decision of the UT. It would, however, have been clear to the Lord Ordinary, looking at the petition and answers, that he was dealing with a challenge to a decision of the UT. The Lord Ordinary could not properly have granted permission unless satisfied of at least one of the two matters in section 27B(3)(c). The question of whether it is open for me to make a decision as to whether the second appeals test is satisfied after another Lord Ordinary has granted permission in a case where that test must be satisfied cannot in my opinion turn on the precise terms of the interlocutor granting permission.
[88] I consider that the argument for the respondent is not well-founded.
[89] The words of the statute are instructive. The legislature has not empowered the Lord Ordinary at permission stage to decide whether she is satisfied that there is, for example, a real prospect of satisfying the second appeals test. She is empowered to grant permission only if she is satisfied that one or other branch of the second appeals test is met.
[90] The respondent’s argument based on the lack of provision for reclaiming against a grant of permission does not advance matters. I am not sure it is necessarily correct that there is no provision for reclaiming. On the assumption that it is correct, however, a decision that the second appeals test is satisfied is in no different position from a decision that there is a real prospect of success. Both are necessary for a grant of permission. Neither can be appealed by a dissatisfied respondent until after the substantive hearing. Neither determines conclusively the outcome of the petition. Only once the outcome of the petition has been determined following a substantive hearing, and only if it determined in a manner adverse to the respondent’s interest, does the respondent have the opportunity to reclaim. A decision may have been made not to take up time in the court system with appeals against grants of permission, on whatever basis they have been made, before the petition as a whole has been determined. Despite a grant of permission a respondent may in the end prevail, and an appeal against permission at his instance would have been a waste of time and resources.
[91] That is in contrast to a refusal of permission, which itself determines the whole petition, and in respect of which there is a much more obvious need for a procedure for review of the interlocutor in question.
[92] My view that the decision at permission stage as to whether the application satisfies the second appeals test cannot be revisited by another Lord Ordinary is fortified by reference to the Opinion of the Supreme Court in Eba, delivered by Lord Hope of Craighead DPSC at paragraph 49(b):
“The question whether the application meets this test must depend on the facts of each case. It ought to be applied at the earliest possible stage, and certainly at the stage of the first hearing, as a matter of relevancy.”
That passage would have been known to the legislature when section 27B was enacted. It is the means by which the legislature has chosen to give effect to what Lord Hope said ought to happen, namely that the test be applied at the earliest possible stage. Under the procedure for judicial review which now exists, but which was not in existence when Eba was decided, that stage is the permission stage.
[93] After arguments were concluded in this case, Lord Boyd of Duncansby’s Opinion in SA and others v Secretary of State for the Home Department became available. In that case, like this, the interlocutor granting permission did not refer to section 27B(3)(c). I note that Lord Boyd reached similar conclusions to those I have expressed above, for essentially similar reasons, and with the benefit of fuller citation of authority.
Must Every Ground of Challenge in the Petition Satisfy the Second Appeals Test?
[94] The respondent’s position was first, that none of the points raised in the petition satisfied the second appeals test. The argument was not, however, confined to that line. The respondent also contended that the petition did not satisfy the second appeals test unless every point raised in the petition was an important point of principle or practice or gave rise to some other compelling reason why the application should be allowed to proceed.
[95] Given the view I have taken as to the effect of the interlocutor granting permission, I do not need to determine this issue to dispose of the petition.
[96] The petitioner argued that the Upper Tribunal erred in law in a number of respects. First, she says that the UT failed to recognise that the leave granted to Mrs N was in law leave with a view to settlement. She argued also that, if it is not, then there has been unlawful discrimination, on the basis set out elsewhere in this Opinion. The petitioner recognised, however, that success on either of those arguments would be in vain unless she could also attack successfully at least one of the findings as to sole responsibility and serious and compelling family or other considerations. The respondent argued that the challenges to these latter findings would not satisfy the second appeals test, and that, even if I considered that one or more of the findings had been reached in error of law, I should not grant the order sought.
[97] My view is that the proposition that every error of law challenged in a petition of this nature must satisfy, individually, the second appeals test, is unsound. A case may raise a point that is an important one of principle or practice. It may be that success on that first point of law will be vain unless another, second, aspect of the challenged decision also can be set aside. That second aspect might not, on its own, satisfy the second appeals test.
[98] To adopt the approach urged by the respondent would give rise to the very risk identified by Lord Dyson JSC in Cart at paragraph 130, namely that errors on important points of principle or practice become fossilised within the UT system. Judicial supervision of the decisions of the UT, particularly in relation to refusals of permission to appeal to it, in the form of judicial review, is retained in order to guard against the risk that errors of law of real significance may slip through the system: Cart, Lord Phillips of Worth Matravers PSC, paragraph 92.
[99] The respondent in the course of argument raised the possibility that one point in a petition might cause the application to pass the second appeals test. The petition might contain a second point, not itself passing the second appeals test, but necessary to the success of the first. The court might be satisfied after a hearing only that the second argument was well founded, and in some circumstances that might lead to reduction of the impugned decision. A petitioner, argued the respondent, ought not to gain access to the supervisory jurisdiction “by the back door”, by raising an ultimately unsuccessful, but generally important, point of law, but succeeding in his petition because the court reduced the challenged decision on the basis of a “non-important” point of law.
[100] The line of argument does not support the proposition that every error of law in an application seeking to challenge a decision of the UT must be one that passes the second appeals test. The mechanism for preventing excessive recourse to the supervisory jurisdiction to challenge decisions of the UT is in section 27B(3)(c). The court at permission stage considers not only whether there is a point in the application which satisfies the second appeals test, but whether the application has a real prospect of success. The permission stage should prevent applications which plainly could succeed only on a point not of general importance from proceeding further. If, on occasion, the point that ultimately succeeds is not one that would have satisfied the second appeals test, that will simply be an incident of litigation. In my view it would not compromise significantly the general policy of limiting recourse to judicial review where a decision of the UT is challenged.
Decision
[101] I therefore sustain the second plea in law for the petitioner, repel the second, third, fourth and fifth pleas in law for the respondent, and grant reduction of the decision of the UT dated 12 August 2016. The respondent’s first plea in law is directed at permission, and though not explicitly referred to in the interlocutor granting permission, its substance has already been dealt with. The fifth plea in law is directed at the withholding of a remedy on the basis that the second appeals test is not satisfied. I repel it because of the view I have taken of the effect of the interlocutor granting permission.